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Getting tough won't help real refugees

What to do? People who don't need Canada's protection are making refugee claims. Surely it should be a simple matter to quickly exclude the undeserving from the claim process.

Janet Dench, executive director, Canadian Council for Refugees (PHOTO SUPPLIED)

By Janet DenchExecutive Director, Canadian Council for Refugees

Fri., July 24, 2009

What to do? People who don't need Canada's protection are making refugee claims. Surely it should be a simple matter to quickly exclude the undeserving from the claim process. Immigration Minister Jason Kenney has recently said that he is looking to the United Kingdom for inspiration in order to do just this.

Unfortunately, there are no simple ways to reliably identify those who don't need protection. And far from being a model to follow, the U.K. experience offers us a cautionary tale of what not to do.

Refugee protection is inconvenient. On the one hand, Canada has obligations under international and domestic law not to return a refugee to persecution or anyone to torture. On the other hand, there is no handy label stuck on a refugee's forehead to let us know who needs protection.

Claimants who are not refugees often arrive with a plausible story, while those fleeing persecution may be tongue-tied from the trauma they have endured, or speak of human rights abuses as yet unreported in Canada.

Over the past several years, the U.K. has been engaged in highly politicized efforts to deliver swift decisions and fast removals of undeserving claimants. What they have achieved is a system that is neither just nor efficient.

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Survivors of torture and rape are wrongly screened into the "detained fast track" where they have little chance of presenting their case effectively. The initial determination of claims is full of errors: 23 per cent to 26 per cent of rejections are overturned on appeal. Widespread destitution of claimants has become a major issue: according to the British Red Cross, last year there were at least 26,000 destitute asylum seekers, and numbers are believed to be increasing. Backlogs of claimants waiting to be heard and to be removed are also growing.

Refugee policy in the U.K. remains extremely controversial: A significant section of the public is virulently hostile toward refugees, while others are outraged at the government's inhumane treatment of refugees.

Overall, and most damagingly, the various fixes introduced by the U.K. government have meant that its refugee system is no longer primarily about protecting refugees. Professor Colin Harvey of Queen's University Belfast has commented: "The U.K.'s model of deterrence and restriction has fed a general climate and culture of disbelief, with negative implications for all refugees, asylum seekers and migrants. Fairness has been compromised in the U.K.'s overarching desire to reduce the numbers of asylum applications."

What then can we learn from the U. K.? Here are three suggestions:

Don't throw the baby out with the bathwater. The refugee system exists to protect refugees – to whom we have legal and moral obligations. The Canadian system is far from perfect and could certainly benefit from changes to allow it to better meet challenges. But we must avoid a system that gives higher priority to rejecting non-refugees than to protecting refugees.

Invest in high-quality first decisions. This is the model we currently have in Canada, where initial decisions are made by the Immigration and Refugee Board. Kenney proposes that immigration officers instead make initial decisions. But we see from the U.K. experience that this leads to error-prone decisions. Correcting mistakes at appeal costs money, and public confidence in the system is undermined. Better to get it right the first time by having claims determined by a fully independent and qualified decision-maker, properly resourced.

Don't politicize refugee determination. The U.K. has seen a deeply unhealthy cycle of sensational media coverage leading to politicians promising to "get tough," which in turn reinforces popular misperceptions about the scale of the problem. Policies adopted in this context are usually designed more to appeal to the public than to provide viable solutions. Meanwhile, public support for refugees is undermined.

Ironically, while Kenney is looking toward the U.K., some in that country are recommending that the U.K. refugee determination system be reformed on the model of the Canadian system. It is perhaps underappreciated in Canada that we are getting a number of things right in our refugee determination system.

So why not recognize and protect the successes? We should be proud that Czech Roma and Mexicans can have their refugee claims assessed by an independent decision-maker and receive refugee protection if they qualify, based on the law and the facts of the individual case. That is what the refugee determination system is for.

Let's improve the system. But let's make sure the system protects refugees.

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